In 2008, high school graduate Abigail Fisher of Sugar Land, Texas, was disappointed to find that her application to the University of Texas at Austin, a leading public college, had been rejected.
If Miss Fisher had finished in the top ten percent of her year, which she didn’t, she would have been granted automatic admission to the university under Texas’ merit-based top 10 per cent rule, which admits to the public university system any high school student in the state who finishes in the top ten percent of his or her graduating class.
Fisher’s application, on the other hand, went into a pool in which a variety of factors are taken into consideration. Fisher – who is white - believes that her application to the University of Texas was denied because of her race.
On Wednesday, her case against the University of Texas, which she claims violated her rights under the Equal Protection Clause of the 14th amendment, will go up before the Supreme Court for review.
Although Fisher's case has already been seen by lower federal courts, and the constitutionality of UT's actions upheld, it is possible that this case could result in an overturning of a landmark 2003 ruling which allowed the University of Michigan’s Law School to use race in a "narrowly tailored" way to "further a compelling interest in obtaining the educational benefits that flow from a diverse student body" and which set the precedent for UT.
Justice Sandra Day O’Connor, one of the judges who presided over the 2003 case, stated at the time that:
The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
However, if Fisher and her lawyers have their way the disbanding of affirmative action may happen far sooner than Justice O’Connor predicted.
This potential smackdown of affirmative action is good news for those who believe that racial diversity can be achieved through race-neutral policies alone. In a report released last week researcher Richard Kahlenberg claims that "universities [in states in which race-conscious admissions are prohibited] have implemented creative methods of assuring diversity."
However, this is not what the University of California – which is the largest selective higher education institution in America and operates a race-neutral admissions process and – says about its own experiences. A case study released this summer revealed that:
Although applications to the flagship campuses have doubled since 1995,and all groups have seen reductions in the percent of applicants offeredadmission, African American and Latino admittees have been reduced by 70 to 75 percent at UCLA and UC Berkeley, compared to just 35 and 40 percent for Asian and white applicants.
It goes on to say:
This disproportionate decline reflects the inequalities in the California educational system that fails to prepare African American, Native American and Latino students for highly competitive selection processes irrespective of their intellectual ability or likelihood of succeeding in their studies.
In fact, in a brief submitted to the Supreme Court in support of the University of Texas in this case, the University of California makes it clear that it does not believe that race-neutral policies are sufficient:
"[our] experience establishes that in California, and likely elsewhere, at present the compelling government interest in student body diversity cannot be fully realized at selective institutions without taking race into account inundergraduate admissions decisions…"
While race-neutrality sounds good in theory, I am not convinced that it is even possible in a country which is permeated by racial inequality, and in which racial disparities in the education system remain so stark. How is it possible to measure students in a race-neutral way if race plays such a role in educational outcomes and achievements? In order to have an effective race-neutral process at the top of the education chain, surely that would also require that there is race-neutrality from the outset?
Yet, the fact is that the inequalities that affirmative action originally sought to redress still remain. For example, while segregation in education is no longer legal, it is still ongoing, with some suggesting that it is even worse today than it was in the 1950s. This is partly as a result of continued residential segregation. In New York City, for example, it has been found that:
A student’s educational outcomes and opportunity to learn are statistically more determined by where he or she lives than their abilities.
In America, the achievement gap in education begins before kindergarten and continues through high school where African American and Latino students lag far behind their white counterparts. It would seem strange for there to be no policies at a higher education level which seek to take into account these ongoing racially-based structural imbalances.
Education has long been considered the pathway to social mobility and in a world that requires better educated and more knowledgeable workers, not having equal opportunity of access to that education presents not only an issue for the individuals, who are more likely to find themselves consigned to lower-income work that requires lower skills, but also for the country which must maintain its competitiveness in the global marketplace.
Unless more effective policies are put in place to address the deeper issues – racial inequalities, poverty, poor schools and low expectations, decaying urban areas, residential segregation and more – the result of stopping affirmative action can only be decreased chances for minority students and an increasingly unequal society.
Addressing these fundamental issues would have to go far beyond affirmative action in higher education, to a thorough review, revision and reform of the very nature of American society, as regards its minority citizens. It would actually require America to put in a great deal of work to ensure that from the very environment that the minority child is born into is a nurturing and more expansive one.
High poverty areas – in which African-American, American Indian and Latino children are six to nine times more likely than to live than white children – would need to be transformed. There would need to be a deeper level of commitment from the government to the eradication of poverty, which appears to have been overlooked in this election cycle with the focus being on the middle class and wealthy.
Ironically, the more one thinks about what is needed, the more it is clear that lack of educational opportunity and access is itself the main barrier to the solution of these issues. But an educational system that has historically been set up to reinforce inequalities will take a lot of work to dismantle.
Some have suggested that class-based affirmative action would be a better, or perhaps more palatable, alternative to race-conscious affirmative action. Of course, there are minority students who are not from economically disadvantaged backgrounds, and white students who are. President Obama has said that his daughters, for example, would not need the benefit of a race-based affirmative action.
However, although the inclusion of class is welcomed and necessary in order to facilitate and formulate a more nuanced look at the various factors that affect opportunity and achievement, this is inadequate on its own. Race and class intersect, yet they are not the same thing and therefore one cannot be replaced with another. Research also suggests that the effect of this would be to increase the number of low-income white students and would not make up for racial inequality. Research from the University of California’s case, has found that:
While African American and Latino youth are much more likely to come from low-income homes than either whites or Asians (53 per cent of African American and 59 per cent of Latino youth are low-income compared to just 22 per cent of white and 28 per cent of Asian youth in California), less than half of the low-income students admitted to the freshman class in 2011 at UC were from underrepresented groups.
I am of the opinion that for as long as race continues to affect people's chances in life, it must be considered as a factor, because it is indeed a factor.
Perhaps if affirmative action is struck down, this would shine more of a spotlight on America’s education system as a whole and more work will be done to narrow the achievement and opportunity gaps between white Americans and minorities from an earlier age. Affirmative action may go away, but the reasons for its implementation still, unfortunately, remain.
Although all eyes are on the forthcoming presidential election, the case of Fisher v University of Texas has the potential to usher in a new reality into America and to change the course of this nation. Let’s hope that the Supreme Court justices make the right decision.